In an omen to both sides of the same-sex marriage debate that they risk walking away with less than they want, arguments before the Supreme Court went from yesterday’s debate on whether a state’s voters can usurp what the federal government may deem a constitutional right to today’s issue of whether the federal government can have a Defense of Marriage Act if the business of marriage should be the prerogative of the states.

“The question is whether or not the federal government under our federalism scheme has the authority to regulate marriage,” said Justice Anthony Kennedy, a potential swing vote in today’s case and in the arguments against California’s Proposition 8 heard yesterday.

“What gives the federal government the right to be concerned at all about what the definition of marriage is?” Justice Sonia Sotomayor asked.

Nine states currently recognize gay marriage and 30 states have banned it via constitutional amendments.

United States v. Windsor is an appeal on a case brought by Edie Windsor, who married her partner in Canada in 2007. When her partner died in 2009, their home state of New York recognized same-sex marriages performed elsewhere. When Windsor inherited her spouse’s estate, she was forced to pay $363,000 in taxes on the inheritance because her marriage was not recognized on a federal level.

Because of the core tax issue, many felt the conservatives on the court would be more sympathetic to the case despite the highly charged facet of gay marriage.

“Suppose we look just at the estate tax provision that’s an issue in this case, which provides specially favorable treatment to a married couple, as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage?” asked Justice Samuel Alito. “Or was Congress just looking for a convenient category to capture households that function as a unified economic unit?”

Attorney Paul Clement, a former solicitor general who led the challenge to ObamaCare last year, argued that Congress passed DOMA in 1996 faced with “the prospect that one state, through its judiciary, will adopt same-sex marriage and then, by operation of the full faith and credit law, that will apply to any — any couple that wants to go there.”

“And so Congress is worried that people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in Hawaii, and then the federal government will borrow that definition, and, therefore, by the operation of one state’s state judiciary, same-sex marriage is basically going to be recognized throughout the country,” Clement said.

“And what Congress says is, wait a minute. Let’s take a timeout here. This is a redefinition of an age-old institution. Let’s take a more cautious approach, where every sovereign gets to do this for themselves.”

“You’re saying, we can create this special category — men and women — because the states have an interest in traditional marriage that they’re trying to protect,” Sotomayor interjected. “How do you get the federal government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the states?”

“One way to stay out of the debate and let just the states develop this and let the democratic process deal with this is to just say, look, we’re going to stick with what we’ve always had, which is traditional definition,” Clement argued. “We’re not going to create a regime that gives people an incentive and point to federal law and say, well, another reason you should have same-sex marriage is because then you’ll get a state tax deduction.”

“It’s not as though, well, there’s this little federal sphere and it’s only a tax question,” said Justice Ruth Bader Ginsburg. “It’s as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so you’re really diminishing what the state has said is marriage.”

Justice Elena Kagan noted that a House report said Congress “decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality” in its passage of DOMA.

“Does the House report say that? Of course the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute,” Clement responded. “…The House report says some things that we are not — we’ve never invoked in trying to defend the statute. But the House report says other things, like Congress was trying to promote democratic self-governance.”

"“What gives the federal government the right to be concerned at all about what the definition of marriage is?” Justice Sonia Sotomayor asked."

She picked a fine issue to be worried about that. This question could be asked about 75% of the cases brought before the Supreme Court, including the health-insurance scam, and answered with one word. NOTHING!

I fail to understand how this is a Federal or a States issue. The Government should have NO interest in who I marry! It is none of their business. We did just fine without the Government licensing us for marriage. In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws. Originally it was so persons of mixed races could marry but eventually everyone needed "permission" to marry. (If they can give you permission they can also withhold that permission. Any Church that you choose to belong to can do a "ceremony" that signifies that you are in agreement with the teachings of the Church that you desire to be a part of. They also can so no if you're not in agreement with their teachings. If you're not in agreement why would you want to be married there! The View?? Go find a church or group of friends that you agree with and have your own ceremony. There's many more implications to all this but you'll find a lot of what clogs our courts and the halls of Congress have to do with the Government sticking their nose in where it doesn't belong. Health Insurance? If you don't want to give health insurance to ALL employees and their families, which we only have as a means of giving a raise in pay that won't be taxed, don't give it to ANY. Give them a raise and let them do what they want with it. I think if you get the insurance companies out of the "Health" business we'll all be healthier and be able to afford Drs. a lot better. Cut out the Middle Man,this would include OBAMACARE and any other lame ass substitute they choose to come up with. He's really not doing anything anyways except costing everybody hundreds of billions of dollars telling you and your Dr. that you can't afford your treatment because of some small print in your policy that says that you're not covered for that. Think about it, there isn't an area in your life that is better because the Government has taken control of it. LIVE FREE OR DIE!!

Rush Limbaugh has given up his radio show! He is no longer fighting for rights against leftists!!!! He is the enemy! He has surrendered!!!!!!

Or maybe, just maybe...he believes THIS ONE ISSUE, has left the barn.

That the fighting over this WORD...was lost long ago.

And all the Chicken Little's running around telling everyone that not fighting a lost cause, is not fighting any cause...will also run around saying that Limbaugh is no longer fighting, So, he might as well cancel all his shows.

There are many lost causes cfbleachers. You happen to fight for many of them, you just dont think this one is worth fighting. But your David Frum style language on the issue with regards to those who do, is very offputting.

Roberts questioned President Obama for continuing to enforce DOMA’s provisions even while proclaiming that it’s unconstitutional.

“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait ’til the Supreme Court tells us we have no choice,’” the chief justice said.........................

Well must thank the Justice for this little dig - saying what we here already know : OBummer never, ever takes responsibility for anything- his MO is " pass the BUCk" ---->ALWAYS -

"“What gives the federal government the right to be concerned at all about what the definition of marriage is?” Justice Sonia Sotomayor asked."

She picked a fine issue to be worried about that. This question could be asked about 75% of the cases brought before the Supreme Court, including the health-insurance scam, and answered with one word. NOTHING!

The time to fight propaganda and leftism, was (and still is), when the media becomes an arm of leftism and steals the information stream.

To tilt at every windmill the leftists throw up now...to have those spittle-flecked in rage constantly beclown themselves, falling for every trap set for them, shooting blindly in every direction, raging against decoys.

If anything destroys our ability to defeat leftism, it is the raging jihadist who can't think straight, shoot straight or know when he is a patsy.

The way to defeat propaganda and leftism...is not to feed it. Or to play it's willing fool.

That argument works for every issue. And so we have a never ending series of hills to not die on, caving, and moving farther and farther Left.

You got the GOP you deserve.

Amnesty and open borders. We have to give voting rights to illegal invaders, settlers, and colonizers, because it isnt smart to tilt at that windmill, dont you know.

Hey, Obamacare is a done deal. The electorate spoke. Running on repeal is bad strategy. You lost that argument. Only racists and bigots oppose Obama and Gay Marriage....or rather that is how they will be portrayed, falling into the trap set by the Left for them.

There you have it folks.

Resistance is futile. Go crawl in a hole and be silent, the era of European Christendom (old white men) is over.There you have it folks.

the least consequential issues often suck the most oxygen from the room. Be honest - on the scale of problems facing the country, this one ranks pretty low. Unfortunately, SCOTUS will not ask the bigger question - who is govt to define marriage in the first place? It's a contract; the state's role is enforcing the provisions and providing redress when one party things the other has violated the terms. Not up to govt to determine which consenting adults can participate. But like I said, this is a distraction that leads to a lot of emoting and masks the truly dangerous things Congress does.

Of course, but when every mountain looks like a good one to die on, then we should leap off every cliff, tearing our hair out and screaming.

In fact, I am now absolutely convinced of the need to do away with Medicare and Social Security. Immediately.

Seems like a well reasoned and responsible reaction. Becoming a bug-eyed jihadist and attacking in all directions at once makes for great generalship and will persuade the masses to follow, I'm quite sure.